■T 

MEPDE 


Congress, { HOUSE OF REPRESENTATIVES. f\ Repo. 
JK 1543 Session. j | Wo. 618 

P5 ™ —= “ — — 

L912a 

^opy 2 



PROCEDURE IN CONTEMPT CASES. 


April 26 (calendar day, April 27), 1912.—Referred to the House Calendar 
ordered to be printed. 


Mr. Clayton, from the Committee on the Judiciary, submitted 

following 

EEPORT. 

[To accompany H. R. 22591.] 

The Committee on the Judiciary, having had under consideration 
H. R. 22591, to amend an act entitled “An act to codify, revise, and 
amend the laws relating to the judiciary,” approved March 3, 1911, 
report the same back with the recommendation that the bill do pass. 

The bill leaves section 268 of the judicial code, formerly section 
725 of the Revised Statutes, in full force and inserts five new sec¬ 
tions, none of whose provisions conflict with said section 268. 

ANALYSIS OF BILL. 

By section 268a, in such cases of contempt specified in section 268 
as constitute a criminal offense under any statute of the United 
States or at common law, the proceedings against the accused party 
shall be “ as hereinafter provided ”; that is, in the subsequent section 
of the bill. 

Most of the important provisions of the bill are contained in sec¬ 
tion 268b. Before action by the court, except in the cases excepted 
from the operation of the bill, there must be presented a formal 
charge showing reasonable ground; and before the party is put upon 
trial he must be afforded an opportunity to purge himself of any 
actual or technical contempt which he may have committed. He 
can not be arrested until he has opportunity to either purge himself 
or make answer and has refused to do either. If arrested, or in case 
the matter can not be disposed of on the return day, he may be 
required to give bail. 

The trial is by the court (1) in case no jury be demanded by the 
accused, (2) if the contempt be in the presence of the court or so 
near thereto as to obstruct the administration of justice, or (3) if 










PEOCEDUBE IN CONTEMPT CASES. ^<\\ 

conteir.pt be charged to be in disobedience of any lawful writ, 

jcess, O/rder, rule, decree, or command entered in any suit or ac- 
i.on brought or prosecuted in the name or on behalf of the United 
States. / In other cases the trial is to be by jury. 

Section 268c provides for the preservation of bills of exception, 
for review upon writ of error, for stay of execution pending pro¬ 
ceeding, for review, and for bail in case the accused shall have been 
sentenced to imprisonment. 

Section 268d excepts from the operation of the act contempts in 
the presence of the court, or so near thereto as to obstruct the admin¬ 
istration of justice, and contempts committed in disobedience of 
any lawful writ, process, order, rule, decree, or command entered 
in any suit or action brought or prosecuted in the name of or on 
behalf of the United States, and provides that in the excepted cases 
as well as in all other cases not specifically embraced within section 
268a, the punishment shall be in conformity to the usages at law and 
in equity now prevailing. 

Section 268e bars proceedings for contempt unless begun within 
one year from the date of the act complained of, and preserves the 
right of criminal prosecution, notwithstanding any proceeding and 
punishment for the contempts covered by the bill. It also excepts 
from the provisions of the bill any proceedings for contempt pend¬ 
ing at the time of its passage. 

Thus it is seen that the bill applies and gives a jury trial, with 
the exception noted, in all proceedings for contempt wherein .the 
acts alleged to have been committed constitute a criminal offense, 
either under any Federal statute or at common law. The trial 
where a jury is had, is governed (sec. 268b), as near as is practica¬ 
ble, by the practice in criminal cases prosecuted by indictment or 
upon information. 

Before calling further attention to the provisions of the bill now 
reported it is appropriate to review some of the contentions of those 
who have opposed every form of legislation whatever on this subject. 

OBJECTIONS ANSWERED. 

All the grounds of objection are reducible to two heads: 

First. That any legislation whatever materially limiting or cur¬ 
tailing the power of the courts in the trial of contempts is uncon¬ 
stitutional. 

Second. That any interference with the full and complete domin¬ 
ion or discretion of the judge in contempt cases tends to disorganiza¬ 
tion and a weakening of judicial efficiency. 

Let us consider first the constitutional objections. 

It is said that although the courts inferior to the Supreme Court 
owe their existence and jurisdiction to congressional action, yet a 
distinction should be made between the jurisdiction and judicial 
power, for instance, in the citation, trial, and punishment of a party 
charged with contempt of court. 

The controversy goes back over 60 years. In 1831 Congress passed 
an act limiting the power of the courts subjectively; that is to say, 
it lopped off some of the jurisdiction which the court had assumed 
and exercised—a jurisdiction, or power, if the latter term be pre- 


PROCEDURE IN CONTEMPT OASES. 


3 


ferred, which Congress believed, and by its legislation asserted, was 
a usurpation. Never, until within a very recent period, was the 
authority of Congress to do that questioned, either by the courts or 
by any respectable authority. The particular circumstance or event, 
instigating the act of 1831, was the punishment by Judge Peck in 
Missouri, as for a contempt of court, of a party who had criticized 
one of his decisions in the columns of a newspaper. 

The law before the act of 1831 read thus: 

The said courts shall have power to impose and administer all necessary 
oaths, and to punish, by fine or imprisonment, at the discretion of the court, 
contempts of their authority. 

The act of 1831 consisted in the addition of a proviso, reading as 
follows: 

Provided, That such power to punish contempt shall not he construed to 
extend to any cases except the misbehavior of any person in their presence, 
or so near thereto as to obstruct the administration of justice, the misbehavior 
of any of the officers of said court in their oflficial transactions, and the dis¬ 
obedience or resistance by any officer, or by any party, juror, witness, or other 
person, to any lawful writ, process, order, rule, decree, or command of the said 
court. 

The extensive scope of this amendatory statute has been generally 
overlooked. The Federal courts were assuming and exercising the 
unlimited and unchecked powers resorted to by common-law courts, 
of deciding for themselves, not only the mode of procedure and 
degree and amount of punishment, but of selecting for themselves 
particular acts of alleged misconduct which should be placed in the 
category of contempts. Congress treated the term “ power ” as 
synonymous with ‘^jurisdiction,” circumscribed the field of juris¬ 
diction, specified the acts which should constitute contempts, and 
said that such power or jurisdiction shall not extend beyond these 
specified acts. 

It has been suggested that Congress might have refused to create 
the inferior courts, or even the Supreme Court, and have thus caused 
the failure of the Government. 

But it is said that when Congress has acted and established a Fed¬ 
eral court the common-law and equity powers of the courts immedi¬ 
ately flow into these judicial receptacles out of the Constitution. It 
is only necessary to examine this new doctrine to know to what 
absurdities it would lead. The common-law courts of England, 
with the King’s bench at their head, in addition to administering 
statutory law and the common law proper, exercised certain parlia¬ 
mentary powers. In the English system the legislative and judicial 
departments were, and are, entirely independent of each other. It 
is true that the courts were bound by acts of Parliament as con¬ 
strued by them, but outside the statutes their powers were as free 
from limitation as those of Parliament itself. They were the ex¬ 
ponents and final arbiters of public policy for the Kingdom. 

Though it is often said that the three departments of our Gov¬ 
ernment are separate and independent, which is true in the sense 
that they must not invade each other’s constitutional domain, and 
thus destroy each other, yet it is also true that arbitrary unchecked 
power does not abide with either of them. As the Supreme Court 
has well expressed it, in Tick Wo v. Hopkins (118 U. S. Rep., 369): 

When we consider the nature and the theory of our institutions of government, 
the principles upon which they are supposed to rest, and review the history 


4 


PROCEDURE IN CONTEMPT CASES. 


of their development, we are constrained to conclude that they do not mean to 
leave room for the play and action of purely personal and arbitrary power. 

To concede that the courts might, even with the limits fixed in the 
act of 1831, exclusively decide when a contempt has been com¬ 
mitted, and the amount or degree of punishment, with no power 
in Congress to set a limit thereto, would be to concede to the courts 
the power to annul every act of Congress, to paralyze the Executive 
arm, to confiscate all property, and destroy all liberty. Of course, 
few, if any, believe that the courts would ever proceed to such ex¬ 
tremes, but it is sufficient to say that, according to our interpreta¬ 
tion, the framers of the Constitution took care to safeguard the 
people against the possibilities of all such calamitous tendencies. 

Eeferring to this bill, and comparing its provisions with the pro¬ 
viso added in 1831, it is seen that the bill only changes the procedure 
in contempt cases, while, as before stated, that proviso limited the 
jurisdiction subjectively. 

The opposition was represented before the committee by able coun¬ 
sel and many authorities were cited, few of which, however, in our 
opinion, had any direct bearing on the question from a constitutional 
point of view. In fact, the power of Congress, as exhibited in 
the act of 1831, was so generally and uniformly conceded that 
not a single case has been found which ever questioned or doubted 
it. A few cases which, though not directly bearing upon the point 
of constitutionality, yet shed more or less light upon it will now be 
noticed. 

It is argued that Congress can not require a court of equity to try 
issues of fact by jury. That is unquestionably sound doctrine, and 
the case of Brown v, Kalamazoo, Circuit Judge (87 Mich., 274), is 
sound law. But it is wholly inapplicable here. No one has thus 
far ever insisted that contempt is of equitable cognizance, or other 
than what the textbooks designated, namely, a special proceeding, 
criminal in its nature, not necessarily connected with any particular 
suit or action pending in the court. 

Numerous State cases were cited in argument. They may all be 
answered as a class. The relation between Congress and Federal 
courts is not the same as that between State legislature and the State 
courts. The constitutions of the various States themselves provide 
for and establish the court, partition the powers of government be¬ 
tween the legislative, executive, and judicial departments, prescrib¬ 
ing safeguards, and defining their powers in detail; whereas the 
Federal Constitution has delegated full and complete control of the 
matter to Congress. Nor should the fact be overlooked that the 
State decisions on the subject are often based upon precedents of the 
common law, which is no part of the Federal system. Thus, in Ex 
parte McCowan (139 N. Car., 95), that being typical of many such 
cases relied upon, it was said: 

We are satisfied that at common law the acts and conduct of the petitioner, 
as set out in the case, constitute a contempt of court, and if the statute does 
not embrace this case and in terms repeal the common law applicable to it, 
we would not hesitate to declare the statute in that respect unconstitutional 
and void for reasons which we will now state. 

In Finck v, O’Neill (106 U. S. Eep., 272) it appeared that Con¬ 
gress has taken from the court all power to enforce its judgment. 


PROCEDURE IN CONTEMPT CASES. 5 

and the act of Congress was upheld by the Supreme Court of the 
United States. In that case (p. 280) the court said: 

The United States can not enforce the collection of a debt from an unwilling 
debtor, except by judicial process. They must bring a suit and obtain a judg¬ 
ment. To reap the fruit of that judgment they must cause an execution to 
issue. The courts have no inherent authority to take any one of these steps, 
except as it may have been conferred by the legislative department; for they 
can exercise no jurisdiction except as the law confers and limits it. 

And in Cary v. Curtiss (3 How., 236, 254) the same court said: 

The courts of the United States are all limited in their nature and consti¬ 
tutions, and have not the powers inherent in courts existing by prescription, 
or by the common law. 

But in section 720, of the Bevised Statutes, we have a statute of 
Congress prohibiting the Federal courts from issuing injunctions in 
certain cases, and the constitutional validity of that statute w'as 
declared in Sharon v. Terry (36 Fed. B., 365). Now, the writ of 
injunction is the arm of the Federal courts in the exercise of their 
equitable powers, which it has been urged enjoy complete immunity 
from congressional action. And here a Federal circuit court sus¬ 
tained an act of Congress which substracted an important part of 
equitable jurisdiction. Anyone taking the trouble to examine the 
judiciary act of 1789, with or without subsequent additions and 
amendments, will observe that it consists, in large part, of regula¬ 
tions of and limitations upon jurisdiction. 

We close this head with the quotation from Ex parte Bobinson 
(19 Wall., 505), cited with approval in the case of Bessette v. Conkey 
(194 U. S., 327), which is so clearly and obviously applicable and 
conclusive that no comment appears to be necessary: 

The power to punish for contempts is inherent in all courts. The moment 
the courts of the United States were called into existence and invested with 
jurisdiction over any subject they became possessed of this power, but the 
power has been limited and defined by the act of Congress of March 3, 1S31. 
The act, in terms, applies to all courts. Whether it can be held to limit the 
authority of the Supreme Court, which derives its existence and power from 
the Constitution, may, perhaps, be a matter of doubt; but that it applies to 
the circuit and district courts there can be no question. These courts were 
created by act of Congress. Their powers and duties depend upon the act 
calling them into existence, or subsequent acts extending or limiting their 
jurisdiction. The act of 1831 is, therefore, to them the law specifying the 
cases in which summary punishment for contempts may be infiicted. It limits 
the powder of these courts in this respect to three classes of cases. 

(1) Where there has been misbehavior of a person in the presence of the 
courts, or so near thereto as to obstruct the administration of justice. 

(2) Where there has been misbehavior of any officer of the courts in his 
oflBcial transaction. 

(3) Where there has been disobedience or resistance by an officer, party, 
juror, witness, or other person, to any lawful writ, process, order, rule, decree, 
or command of the courts. The law happily prescribes the punishment which 
the courts can impose for contempts. The seventeenth section of the judiciary 
act of 1789 (1 Stat. L., 73), declares that the court shall have power to 
punish of their authority in any cause or hearing before them by fine or im¬ 
prisonment, at their discretion. The enactment is a limitation upon the man¬ 
ner in which the power shall be exercised, and must be held to be a negation 
of all other modes of punishment. The judgment of the court debarring the 
petitioner, treated as a punishment for contempt, was therefore unauthorized 
and void. 


6 


PROCEDURE IN CONTEMPT CASES. 


As to the other ground of objection urged—that is, that any inter¬ 
ference with the full and complete dominion and discretion of the 
courts tends to disorganization and to the weakening of judicial 
authority—judging by the course of previous discussion on this meas¬ 
ure, it is not anticipated that the policy of the provision placing 
a limitation upon the punishment which can be inflicted will be 
strenuously criticized, and, therefore, we will make no further com¬ 
ment on that. 

TRIAL BY JURY. 

The feature of the bill against which the most strenuous argu¬ 
ment has been directed is that providing for jury trials. But no 
one has shown that such provision amounts to anything more 
than a change of procedure. So that the question comes down to this. 
Has Congress or not the power to prescribe procedure? The courts 
will still, if this bill passes, have all the substantive power left in 
their hands by the act of 1831. Not one of the acts there catalogued 
will have been eliminated. The method of ascertaining the facts 
in certain cases is changed, but their ascertainment is still under 
supervision of the court, and ample safeguards are provided against 
evasions and miscarriages of justice. 

A contemnor, from the moment the facts are judicially ascertained, 
is, by uniform practice, either placed in durance or required to give 
bail. The result of an adverse judgment is always penal, both in 
form and effect, though the fine be sometimes turned over to a 
private litigant. 

The manner of disposing of the fine does not alter, in any respect, 
the form and effect of the procedure, or change it from criminal to 
civil. 


SUCH LEGISLATION LONG DEMANDED. 

The bill is an evolution from prolonged and varied discussion, 
by no means limited to a recent date or to the present Congress. 
Every feature and provision of it has been subjected to attack and 
defense, but the whole controversy appears to have at length con¬ 
verged upon the issue of whether or not the policy and practice of 
jury trial in contempt cases shall be admitted in the Federal juris¬ 
prudence at all. 

That complaints have been made and irritation has arisen out of 
the trial of persons charged with contempt in the Federal courts is 
a matter of general and common knowledge. The charge most com¬ 
monly made is that the courts, under the equity power, have invaded 
the criminal domain, and under the guise of trials for contempt have 
really convicted persons of substantive crimes for which, if indicted, 
they would have had a constitutional right to be tried by jury. It 
has been the purpose of your committee in this bill to meet this com¬ 
plaint, believing it to be a sound public policy so to adjust the 
processes of the courts as to disarm any legitimate criticism; and 
your committee confidently believes that, so far from weakening the 
power and effectiveness of Federal courts, this bill will remove a 
cause of just complaint and promote that popular affection and re¬ 
spect which is in the last resolve the true support of every form of 
governmental activity. 


ACTS OF CONGKESS KELATING TO CONTEMPTS. 


Statutes at Large, vol. 1, First Congress, first session, chapter 20: 


AN ACT To establish the Judicial Courts of the United States, approved September 

24 , 1789 . 

Sec. 17. And be it further enacted. That all the said courts of the United 
States shall have power to grant new trials, in cases where there has been a 
trial by jury for reasons for which new trials have usually been granted in the 
courts of law; {a) and shall have power to impose and administer all neces¬ 
sary oaths or affirmations, and to punish by fine or imprisonment, at the dis¬ 
cretion of said courts, all contempts of authority in any cause or hearing before 
the same; (6) and to make and establish all necessary-rules for the orderly 
conducting of business in the said courts, provided such rules are not repugnant 
to the laws of the United States. (This section at page 83; letters in paren¬ 
theses refer to notes at the bottom of the page.) 

Act of March 2,1831, upon which sections 725, 5399, 5404, 5405, and 
5406, Eevised Statutes, above quoted, is based, Avas as folloAA^s: 

lie it enacted by the Senate and House of Representatives of the United 
States of America in Gongf'ess assembled, That the power of the several courts 
of the United States to issue attachments and infiict summary punishment for 
contempts of court shall not be construed to extend to any cases except the 
misbehaAfior of any person or persons in the presence of the said courts, or so 
near thereto as to obstruct the administration of justice, the misbehavior of 
any of the officers of the said courts in their official transactions, and the dis¬ 
obedience or resistance by any officer of the said courts, party, juror, witness, 
or any other person or persons, to any lawful writ, process, order, rule, decree, 
or command of the said courts. 

Sec. 2. And be it further enacted, That if any person or persons shall, cor¬ 
ruptly, or by threats or force, endeavor to infiuence, intimidate, or impede any 
juror, witness, or officer, in any court of the United States, in the discharge of 
his duty, or shall, corruptly, or by threats or force, obstruct, impede, or en¬ 
deavor to obstruct or impede, the due administration of justice therein, every 
person or persons so offending shall be liable to prosecution therefor by in¬ 
dictment, and shall, on conviction thereof, be punished by fine not exceeding 
five hundred dollars, or by imprisonment not exceeding three months, or both, 
according to the nature and aggravation of the offense. 

Approved, March 2, 1831. 

Section 725 Revised Statutes United States (1878) : 

Sec. 725. The said courts shall have power to impose and administer all 
necessary oaths and to punish, by fine or imprisonment, at the discretion of 
the court, contempts of their authority; Provided, That such power to punish 
contempts shall not be construed to extend to any case except the misbehavior 
of any person in their presence, or so near thereto as to obstruct the adminis¬ 
tration of justice, the misbehavior of any of the officers of said courts in their 
official transactions, and the disobedience or resistance by any such officer, or 
by any party, juror, witness, or other person, to any lawful writ, process, order, 
rule, decree, or command of said courts. (Stat. L., vol. 4, p. 487, 21st Cong., 2d 
sess., chap. 99, “An act declaratory of the law concerning contempts of court,” 
approved Mar. 2, 1831.) 

Note.—S ection 725 of the Revised Statutes is reenacted by section 268 of 
the Judicial Code, effective January 1, 1912, and section 725 is repealed by 
section 297 of the same code. 


7 



8 


PROCEDURE IN CONTEMPT CASES. 


Section 268 of the Judicial Code (1912) : 

Sec. 268. The said courts shall have power to impose and administer all 
necessary oaths, and to punish, by fine or imprisonment, at the discretion of the 
court, contempts of their authority: l^ovided, That such power to punish con¬ 
tempts shall not be construed to extend to any cases except the misbehavior 
of any person in their presence, or so near thereto as to obstruct the adminis¬ 
tration of justice, the misbehavior of any of the officers of said courts, in their 
oflicial transactions, and the disobedience or resistance by any such officer, or 
by any party, juror, witness, or other person to any lawful writ, process, order, 
rule, decree, or command of the said courts. (Rev. Stats,, sec. 725, 1878.) 

Section 5399, Revised Statutes United States (1878) : 

Sec. 5399. Every person who corruptly, or by threats or force, endeavors to 
influence, intimidate, or impede any witness, or officer, in any court of the 
United States, in the discharge of his duty, or corruptly, or by threats or force, 
obstructs or impedes, or endeavors to obstruct or impede, the due administra¬ 
tion of justice therein, shall be punished by a fine of not more than five hundred 
dollars, or by imprisonment not more than three months, or both. (Stat. U., 
vol. 4, p. 488; act approved Mar. 2, 1831.) 

Section 5404, Revised Statutes United States (1878) : 

Sec. 5404. Every person who corruptly, or by threats or force, or by threat¬ 
ening letters, or any threatening communications, endeavors to influence, in¬ 
timidate, or impede any grand or petit juror of any court of the United States 
in the discharge of his duty, or who corruptly, or by threats or force, or by 
threatening letters, or any threatening communications, influences, obstructs, 
or impedes, or endeavors to influence, obstruct, or impede, the due administra¬ 
tion of justice therein, shall be punishable by a fine of not more than one 
thousand dollars, or by imprisonment not more than one year, or by both such 
fine and imprisonment. (Stat. L., chap. 420, vol. 17, p. 378; act of June 10, 
1872.) 

Section 5405, Revised Statutes United States (1878) : 

Sec. 5405. Every person who attempts to influence the action or decision of 
any grand or petit juror upon any issue or matter pending before such juror 
or before the jury of which he is a member, or pertaining to his duties, by 
writing or sending to him any letter or any communication in print or writing 
in relation to such issue or matter, without the order previously obtained of the 
court before which the juror is summoned, shall be punishable by a fine of not 
more than one thousand dollars or by imprisonment not more than six months, 
or by both such fine and imprisonment. (Stat. L., vol. 17, p. 378, chap. 420, 
act of June 10, 1872.) 

Section 5406, Revised Statutes United States (1878) : 

Sec. 5406. If two or more persons in any State or Territory conspire to deter 
by force, intimidation, or threat any party or witness in any court of the United 
States from attending such court or from testifying to any matter pending 
therein freely, fully, and truthfully, or to injure such party or witness in his 
person or property on account of his having so attended or testified, or to 
influence the verdict, presentment, or indictment of any grand or petit juror 
in any such court, or to injure such juror in his person or property on account 
of any verdict, presentment, or indictment lawfully assented to by him, or of 
his being or having been such juror, each of such persons shall be punished by 
a fine of not less than five hundred, nor more than five thousand dollars, or by 
imprisonment with or without hard labor not less than six months nor more 
than six years, or by both such fine and imprisonment. (Stat. L., vol. 17, p. 13, 
Apr. 20, 1871.) 

Note.— Sections 5399, 5404, 5405, and 5406 of the Revised Statutes are re¬ 
pealed by section 341 and reenacted by sections 135, 136, and 137 of the Criminal 
Code, effective January 1, 1910. 

Section 135, Criminal Code (1910) : 

Sec. 135. Whoever corruptly, or by threats or force, or by any threatening 
letter or communication, shall endeavor to influence, intimidate, or impede 
any witness in any court of the United States, or before any United States com¬ 
missioner or officer acting as such commissioner, or any grand or petit juror 


PKOCEDURE IN CONTEMPT CASES. 


9 



or officer in or of any court of the United States, or officer who may be serving 
at any examination or other proceeding before any United States commis¬ 
sioner or officer acting as such commissioner, in the discharge of his duty, or 
who corruptly or by threats or force, or by any threatening letter or threat¬ 
ening communication, shall influence, obstruct, or impede, or endeavor to in¬ 
fluence, obstruct, or impede the due administration of justice therein, shall be 
fined not more than one thousand dollars or imprisoned not more than one year, 
or both. (Rev. Stats., secs. 5399, 5404.) 

Section 136, Criminal Code (1910) : 

Sec. 136. If two or more persons conspire to deter, by force, intimidation, or 
threat, any party or witness in any court of the United States, or in any ex¬ 
amination before a United States commissioner or officer acting as such commis¬ 
sioner, from attending such court or examination, or from testifying to any 
matter pending therein, freely, fully, and truthfully, or injure such party or 
witness in his person or property on account of his having so attended or testi¬ 
fied. or to influence the verdict, presentment, or indictment of any grand or 
petit juror in any such court, or to injure such juror in his person or proj^erty 
on account of any verdict, presentment, or indictment lawfully assented to by 
him, or on account of his being or having been such juror, each of such persons 
shall be fined not more than five thousand dollars or imprisoned not more than 
six years, or both. Rev. Stats., sec. 5406.) 

Section 137, Criminal Code (1910) ; 

Sec. 137. Whoever shall attempt to influence the action or decision of any 
grand or petit juror of any court of the United States, upon any issue or mat¬ 
ter pending before such juror, or before the jury of which he is a member, or 
pertaining to his duties, by writing or sending to him any letter or any com¬ 
munication, in print or writing, in relation to such issue or matter, shall be 
fined not more than one thousand dollars or imprisoned not more than six 
months, or both. (Rev. Stats., sec. 5405.) 

H. Rept. 613, 62-2-2 

I 




I 




THE BILL. 


[H. R. 22591, Sixty-second Congress, second session.] 

In the House of Eepresentatives, March 29, 1912. 

Mr. Clayton introduced the following bill; which was referred to 
the Committee on the Judiciary and ordered to be printed. 

A BILL To amend an Act entitled “An Act to codify, revise, and amend the 
laws relating to the judiciary,” approved March third, nineteen hundred and 
eleven. 

Be it enacted hy the Senate and House of Representatives of the 
United States of America in Congress assembled ^ That the act 
entitled “An act to codify, revise, and amend the laws relating to 
the judiciary,” approved March third, nineteen hundred and eleven, 
be, and the same is hereby, amended by inserting after section 268 
thereof five new sections, to be numbered, respectively, 268 a, 268 b, 
268 c, 268 d, and 268 e, reading as follows: 

“ Sec. 268 a. That any person who shall willfully disobey any law¬ 
ful writ, process, order, rule, decree, or command of any district 
court of the United States by doing any act or thing therein or 
thereby forbidden to be done by him, if the act or thing so done 
by him be of such character as to constitute also a criminal offense 
under any statute of the United States or at common law shall be 
proceeded against for his said contempt as hereinafter provided. 

“ Sec. 268 b. That whenever it shall be made to appear to any 
district court or judge thereof, or to any judge therein sitting, 
the return of a proper officer on lawful process, or upon the 
affidavit of some credible person, or by information filed by any 
district attorney, that there is reasonable ground to believe that any 
person has been guilty of such contempt, the court or judge thereof, 
or an}^ judge therein sitting, may issue a rule requiring the said 
person so charged to show cause upon a day certain why he should 
not be punished therefor, which rule, together with a copy of the 
affidavit or information, shall be served upon the person charged 
with sufficient promptness to enable him to prepare for and make 
return to the order at the time fixed therein. If upon or by such 
return, in the judgment of the court, the alleged contempt "be not 
sufficiently purged, a trial shall be directed at a time and place fixed 
by the court: Provided^ however^ That if the accused, being a 
natural person, fail or refuse to make return to the rule to show 
cause, an attachment may issue against his person to compel an 
answer, and in case of his continued failure or refusal, or if for any 
reason it be impracticable to dispose of the matter on the return day, 
he may be required to give reasonable bail for his attendance at the 
10 



PROCEDURE IN CONTEMPT CASES. 


11 


trial and his submission to the final judgment of the court. Where 
the accused person is a body corporate, an attachment for the seques¬ 
tration of its property may be issued upon like refusal or failure to 
answer. 

“ In all cases within the purview of this act shch trial may be by 
the court, or, upon demand of the accused, by a jury; in which lat¬ 
ter event the court may impanel a jury from the jurors then in at¬ 
tendance, or the court or the judge thereof in chambers may cause 
a sufficient number of jurors to be selected and summoned, as pro¬ 
vided by law, to attend at the time and place of trial, at which time 
a jury shall be selected and impaneled as upon a trial for misde¬ 
meanor ; and such trial shall conform, as near as may be, to the prac¬ 
tice in criminal cases prosecuted by indictment or upon information. 

“ If the accused be found guilty, judgment shall be entered accord¬ 
ingly, prescribing the punishment, either by fine or imprisonment, 
or both, in the discretion of the court. Such fine shall be paid to 
the United States or to the complainant or other party injured by 
the act constituting the contempt, or may, where more than one is 
so damaged, be divided or apportioned among them, as the court 
may direct; but in no case shall the fine to be paid to the United 
States exceed, in case the accused is a natural person, the sum of one 
thousand dollars, nor shall such imprisonment exceed the term of 
six months. 

“ Sec. 268 c. That the evidence taken upon the trial of any person 
so accused may be preserved by bill of exceptions, and any judgment 
of conviction may be reviewed upon writ of error in all respects as 
now provided by law in criminal cases, and may be affirmed, re¬ 
versed, or modified as justice may require. Upon the granting of 
such writ of error execution of judgment shall be stayed, and the 
accused, if thereby sentenced to imprisonment, shall be admitted to 
bail in such reasonable sum as may be required by the court or by 
any justice or any judge of any district court of the United States. 

“ Sec. 268 d. That nothing herein contained shall be construed to 
relate to contempts committed in the presence of the court, or so 
near thereto as to obstruct the administration of justice, nor to con¬ 
tempts committed in disobedience of any lawful writ, process, order, 
rule, decree, or command entered in any suit or action brought or 
prosecuted in the name of or on behalf of the United States, but the 
same and all other cases of contempt not specifically embraced within 
section 268 a of this act may be punished in conformity to the usages 
at law and in equity now prevailing. 

“ Sec. 268 e. That no proceeding for contempt shall be instituted 
against any person unless begun within one year from the date of 
the act complained of; nor shall any such proceeding be a bar to any 
criminal prosecution for the same act or acts; but nothing herein 
contained shall affect any proceedings in contempt pending at the 
time of the passage of this act.” 


o 





62d CoNGKEss, ) HOUSE OP REPRESENTATIVES, j Rept. 613, 

^ I Pftrt 2 


PROCEDURE IN CONTEMPT CASES. 


April 29, 1912,—Referred to the House Calendar and ordered to be printed. 


Mr. Sterling, from tHe Committee on the Judiciary, submitted the 
following as the 

VIEWS OF THE MINORITY. 

fTo accompany H, R. 22591.] 

We, the undersigned, members of the Committee on the Judiciary, 
do not agree with the action of the committee on the bill (H. R. 21100) 
entitled ^ ‘An act to amend an act to codify, revise, and amend the laws 
relating to the judiciary,” approved March 3, 1911. 

The effect of the bill is to take from the courts the right to determine 
the guilt or innocence of one charged with contempt in certain cases 
and submit that question to a jury. If its provisions were put into 
actual practice it would greatly impair and might in some instances, 
we fear, totally destroy the power of the court to enforce its orders and 
decrees and maintain the peace of society. 

We know of no necessity for the erratic and radical legislation pro¬ 
vided for in this biU. He who would depart from long-established 
principles and usages should be able to give some reason therefor. He 
should be able to offer something better or show wherein abuses would 
be corrected or evils avoided by the departure. The proponents of 
this bill have failed to do either. 

The committee has had extended hearings on this bill. Nowhere 
has it been made to appear to the committee that there has been any 
general abuse of the power of the courts to punish for contempt, nor 
has specific instances been shown where persons were wronged by the 
exercise of that power which this bill seeks to take from the court and 
lodge in another tribunal. 

We desire to view this bill in three aspects: First, as to some of its 
provisions in detail; second, as to its constitutionality; and, third, as 
to whether it is desirable legislation on the ground of public policy. 

Even though it were desirable to try any questions of contempt by 
a jury there can be no possible reason why those cases set apart by 
this bill to be dealt with in that way should be so distinguished from 
all others. It is important that all contempts should be punished 
with certainty and as summarily as possible consistent with justice. 










2 




PROCEDUKE IN CONTEMPT CASES. 












This is necessary in order to maintain the authority of the court and 
to secure to it that respect to which it is entitled. This is especially 
true where the acts constituting the contempt are acts of violence 
or where they constitute a crime. It is this class of contempts which 
this bill precludes from certain and summary punishment and no others. 
It provides that any act of disobedience to the law constituting con¬ 
tempt shall be tried by the jury if the act of disobedience also arnounts 
to a crime, but it leaves the lesser oJense of contempt not constituting 
crime to be punished summarily by the court. Punishment for 
violence in any form should be as certain and swift as is possible 
consistent with justice, and particularly so when that violence resists 
the execution of the processes and orders of the courts and the due 
course of justice. What reason can one assign for giving to the man 
who commits a crime in resistance to an order or process of court 
the right of trial by jury and denying it to the man w^ho resists it by 
peaceful methods ? The proponents of this bill have never here or 
elsewhere assigned any reason for the unjust and unfair distinction. 
As a concrete illustration of the working of such a law let us suppose 
a case. An officer of the law in the performance of his swmrn duty 
seeks to serve one with a summons to attend court as a witness or 
juror, but is prevented from doing so by being assaulted and beaten. 
That oTender is guilty of contempt by the commission of violence 
on an officer amounting to a crime, and under the provisions of this 
bill he is entitled to have his case of contempt taken away from the 
court whose authority he has violated and submitted to a jury, with 
all the delays and uncertainties incident to such practice. 

In another case the officer serves one with a summons to attend as 
a witness or juror without molestation and makes due return to the 
court. But this man simply disobeys the order of the court by failure 
or refusal to attend, and he is denied the right of trial by jury and 
must submit to the summary determination of his contempt by the 
court whose order he disobeys. Thus, the graver offender, the one 
who defies the court and resists its authority by violence and crime, 
is given the right of trial by jury, if he demands it, while the lesser 
offender who simply fails or refuses to obey the order of the court 
is denied that right. 

But even a graver injustice must inevitably flow from this in¬ 
vidious classification of contempts than that. The bill provides that 
trial by jury for contempt shall conform as nearly as maybe to the 
practice in criminal cases prosecuted by indictment or upon infor¬ 
mation. Under that clause the court must apply the rules of evi¬ 
dence in criminal cases to that class of contempt cases which are 
submitted to a jury by this bill. It requires the court to instruct 
the jury that unless they believe from the evidence beyond all reason¬ 
able doubt that the accused is guilty of contempt he must be acquitted; 
and that if the acts of the accused can be explained on any other 
reasonable hypnothesis than that of guilt he must be found not 
guilty. But this favorable rule of evidence will only apply in the case 
of the graver offender who has defied the court by violence and in¬ 
timidation and resisted its authority by the commission of crime He 
of all persons charged with contempt, is selected out to receive the 
bpefit of any doubt, while the lesser offender, he who has passively 
disobeyed the order of the court, shall be convicted on a mere pre¬ 
ponderance of the evidence. We believe in those rules of evidence 


n. Of 


PROCEDURE IN CONTEMPT CASES. 


3 


which require strict proof, when liberty is at stake; but if they are 
made to apply to grave offenses in contempt cases, they should also 
be made to apply to slight offenses. We insist that if any distinction 
is to be made in this class of cases and in the degree of proof required, 
then the slight offender and not the grave offender should be favore(l 
in that distinction. This bill does the reverse. 

Under this bill, prosecution for contempt would be subject to the 
delays and uncertainties incident to jury trials. This would be true 
in a measure even in law courts, of which the jury is a component 
part. Much of the time even these courts have no jury at hand. 
Under such conditions a jury must be drawn from the whole body 
of the people of the district, which would result in delay. The bill 
takes no account of a disagreement of the jury, or a failure to reach 
a verdict, and this would require the impaneling of anpther jury; 
and thus it will be seen that the authority of the court will be greatly 
weakened by delay and uncertainty, and the administration of 
justice greatly impeded by reason thereof. 

It is very clear,however, that this bill is not intended, in its applica¬ 
tion, for contempt cases in the law courts. It aims at the courts of 
equity and seeks to impair their judicial power, by the intervention 
of a jury, to enforce their orders and decrees. This intervention of a 
jury in courts of equit;^, to determine questions of law and fact, is 
an innovation in practice unknown in the whole history of equity 
jurisprudence, and he who espouses it assumes the burden of showing 
it is a real reform and not a mere political exigency. Courts of equity 
have no jury nor the means of securing one. These courts grew up 
by reason of the very fact that they apply principles of justice and 
equity to the affairs of men which may be better administered by the 
chancellor than by a jury. They came as a necessity, to do justice 
in those cases where the rigid rules of law either wrought or permitted 
a hardship. This bill proposes to strip these courts of their true 
character as courts of equity and thus tie the hands of the chancellor 
in the administration of justice by the introduction of rules of prac¬ 
tice which belong only to the courts of law. 

It does violence to the experience of the centuries, that equity 
principles are best administered through the conscience of the chan¬ 
cellor. It is inconsistent, indeed it is lolly, to confer upon courts of 
equity the judicial power to try and determine causes in equity and 
to then intervene between that court and the enforcement of its 
decrees another tribunal unknown to equity practice. 

This bill contains one very remarkable exception. It makes a dis¬ 
tinction between actions brought by or in the name of the United 
States and actions brought by persons. No reason has been assigned 
for this distinction, and we know of none. Section 268d provides: 

That nothing herein contained shall be construed to relate to contempts com¬ 
mitted in disobedience of any lawful writ, process, order, rule, decree, or command 
entered in any suit or action brought or prosecuted in the name of or on behalf of the 
United States. 

It leaves contempts arising in this class of cases to be dealt with as 
they are now. If this bill provides good practice in contempts 
arising in suits between persons, why is it not good practice in suits to 
which the Government is a party? If it would be bad practice in 
cases where the Government is a party, it would be bad in cases 
between persons. There is no escape from this conclusion. There is 


4 


PEOCEDUKE IN CONTEMPT CASES. 


no rational or sensible reason for eliminating Government suits, from 
the operation of the law, except that it would interfere with the proper 
administration of justice by hampering the courts in the enforcement 
of their orders and decrees and maintaining their authority and their 
complete integrity as courts. We fully agree that this is a conclusive 
reason for not applying the bill to such cases. It is just as conclusive 
a reason why it should not apply to other cases. It condemns the 
whole biU. The exception suggests the thought that it is desired to 
do as little harm as possible to the proper administration of justice, 
but to do only such harm as the political exigencies of the situation 
require. We respectfully submit that this is not the true and proper 
basis on which legislation should be predicated. 

We are of the opinion that the proposed law is in violation of the 
Constitution. Congress can not take from the courts those inherent 
powers necessary to their existence or so regulate the exercise of 
them as to seriously impair them. 

The judicial power of the United States is conferred upon the 
Supreme Court and such inferior courts as Congress may ordain and 
estabhsh, by the Constitution, and not by any act of Congress. The 
language of the Constitution is as follows: 

The judicial power of the United States shall be vested in one Supreme Court and 
in such inferior courts as Congress may from time to time ordain and establish. 

The Constitution made it the duty of Congress to create such courts 
as it deemed necessary, and the instant Congress had acted in the 
performance of its duty the judicial power vested in the courts thus 
created, by virtue of the Constitution. 

Judicial power is the power to hear end determine causes in law 
and equity and to enforce the processes, orders, judgments, and 
decrees of the court. The power, too, to enforce its judgments and 
decrees are equally important as the power to hear and decide cases. 
A court without the power to enforce its orders would be a nullity 
and utterly powerless to administer justice. In the case of Kansas 
V. Colorado (206 U. S., p. 31), Mr. Justice Brewer discussed the con¬ 
stitutional grant of power to Congress and the courts as follows: 

In the Constitution are provisions in separate articles for the three great departments 
of Government—legislative, executive, and judicial. But there is this significant 
difference in the grants of powers to these departments: The first article, treating of 
legislative powers, does not make a general grant of legislative power. It reads: 

“All legislative powers herein granted shall be vested in a Congress,” etc. 

And then, in Article VIII, it mentions and. defines the legislative powers that are 
granted. By reason of the fact that there is no general grant of legislative power, it has 
become an accepted constitutional rule that this is a government of enumerated 
powers. 

In McCulloch v. Maryland (4 Wheat., 405, 4 L. ed., 601) Chief Justice Marshall said: 

“This Government is acknowledged by all to be one of enumerated powers. The 
principle that it can exercise only the powers granted to it would seem too apparent 
to have required to be enforced by all those arguments which its enlightened friends, 
while it was depending before the people, found it necessary to urge. That principle 
is now universally admitted.” 

On the other hand, in Article III, which treats of the judicial department—and this 
is important for our present consideration—we find that section 1 reads that “the 
judicial power of the United States shall be vested in one Supreme Court and in such 
inferior courts as the Congress may from time to time ordain and establish.” By this 
is granted the entire judicial power of the Nation. Section 2, which provides that 
“the judicial power shall extend to all cases, in law and equity, arisino- under this 
Constitution, the laws of the United States,” etc., is not a limitation nor an enumera¬ 
tion. It is a definite declaration—a provision that the judicial power shall extend 
to—that is^ shall include—the several matters particularly mentioned, leaving unre¬ 
stricted the general grant of the entire judicial power. There may be of course lim- 


PKOCEDUKE IN CONTEMPT CASES. 


5 


itations on that grant of power, but, if there are any, they must be expressed, for 
otherwise the general grant would vest in the courts all the judicial power which the 
new Nation was capable of exercising. Construing this article in the early case of 
Chisholm v. Georgia (2 Dali., 419, 1 L, ed., 440) the court held that the judicial power 
of the Supreme Court extended to a suit brought against a State by a citizen of another 
State. In announcing his opinion in the case, Mr. Justice Wilson said (p. 453; L. ed., 
p. 454) .■ 

“This question, important in itself, will depend on others more important still, and 
may, perhaps, be ultimately resolved into one no less radical than this: Do the 
people of the United States form a nation? ’’ 

In reference to this question attention may, however, properly be called to llans v. 
Louisiana (134 U. S., 1, 33 L. ed., 842, 10 Sup. Ct. Rep., 504). 

The decision in Chisholm v. Georgia led to the adoption of the eleventh amendment 
to the Constitution, withdrawing from the judicial power of the United States every 
suit in law or equity commenced or prosecuted against one of the United States by 
citizens of another State or citizens or subjects of a foreign State, This amendment 
refers only to suits and actions by individuals, leaving undisturbed the jurisdiction 
over suits or actions by one State against another. As said by Chief Justice Marshall 
in Cohen v. Virginia (6 MTieat., 264, 407; 5 L. ed., 257, 291): “The amendment, there¬ 
fore, extended to suits commenced or prosecuted by individuals, but not to those 
brought by States.” See also South Dakota v. North Carolina (192 U. S., 286; 48 L. 
ed., 448; 24 Sup. Ct. Rep., 269). 

Speaking generally, it may be observed that the judicial powers of a nation extends 
to all controversies justiciable in their nature, and the parties to which or the prop¬ 
erty involved in which may be reached by judicial process, and when the judicial 
power of the United States was vested in the Supreme and other courts, all the judicial 
power which the Nation was capable of exercising was vested in those tribunals; and 
unless there be some limitations expressed in the Constitution it must be held to 
embrace all controversies of a justiciable nature arising within the territorial limits 
of the Nation, no matter who maybe the parties thereto. This general truth is not 
inconsistent with the decisions that no suit or action can be maintained against the 
Nation in any of its courts without its consent, for they only recognize the obvious 
truth that a nation is not, without its consent, subject to the controlling action of any 
of its instrumentalities or agencies. The creature can not rule the creator. (Kawa- 
nanakoa v. Polyblank, 205 U. S., 349, ante, 834; 27 Sup. Ct. Rep., 526.) Nor is it incon¬ 
sistent with the ruling in Wisconsin v. Pelican Insurance Co. (127 U, S., 265; 32 L. 
ed., 239; 8 Sup. Ct. Rep., 1370), that an original action can not be maintained in 
this court by one State to enforce its penal laws against a citizen of another State. 
That was no denial of the jurisdiction of the court, but a decision upon the merits, of 
the claim of the State. 

These considerations lead to the proposition that when a legislative power is claimed 
for the National Government the question is whether that power is one of those granted 
by the Constitution, either in terms or by necessary implication; whereas, in respect 
to judicial functions, the question is whether there be any limitations expressed in the 
Constitution on the general grant of national power. 

We believe that all the courts, where the question has arisen, have 
held that the power to punish for disobedience of the court’s orders 
and decrees and for resistance to its authority is an inherent power 
which may not be taken away or impaired by legislative enactment. 
In the case of Middlebrook v. State (43 Conn., p. 257), the court said: 

The statute is not to be regarded as conferring the power to punish for contempts 
but merely as regulating an existing power. The power is inherent in all courts. 

But independently of the statute, we think the power is inherent in all courts. 
The court of justice must of necessity have the power to preserve its own dignity and 
to protect itself. 

The Legislature of Virginia passed an act very similar to the one 
proposed here, giving one accused of contempt of court a right of 
trial by jury. The courts of that State refused to recognize the power 
of the legislature to so regulate the powers of the court in contempt 
cases. In the Carter case in the 96 Virginia reports the court say: 

Being of opinion that the defendant was guilty of contempt, we shall not attempt 
any classification of it as a direct or indirect contempt. If it were a direct contenipt, 
then its punishment was without doubt to be ascertained and fixed by the court with¬ 
out the intervention of a jury by the terms of the law. 


6 


PEOCEDURE IN CONTEMPT CASES. 


It is incumbent upon us to consider whether it was within the power of the legisla¬ 
ture to deprive the court of jurisdiction to punish it without the intervention of a jury. 

In the courts created by the Constitution there is an inherent power of self-defense 
and self-preservation; that this power can be regulated, but can not be destroyed, 
or so far diminished as to be rendered ineffectual by legislative enactment; that it is 
a power necessarily resident in and to be exercised by the court itself, and that the 
vice of an act which seeks to deprive the court of this inherent power is not cured by 
providing for its exercise by a jury. 

The Supreme Court of Michigan held the same doctrine in the case 
of Nichols V. Judge of Superior Court (130 Mich., 192), decided in 
1902. The Constitution confers judicial power on the courts of that 
State in much the same language as that used in the Federal Constitu¬ 
tion. In that case the court used this language: 

The question, therefore, is again presented to this court. Have the circuit courts 
of this State the inherent power to punish for contempts, or are they subject to the 
control of the legislature? The question is an important one in the administration 
of the law. If the legislature can determine what acts shall constitute contempts 
in the circuit courts, it can abolish the power of such courts to punish for the con¬ 
tempts. There is no middle ground; either the courts have the absolute control, 
under the constitution, over contempt proceedings, or they have only such as the 
legislature may see fit to confer. 

In Hale v. The State (55 Ohio St. Rep., 210) is another case in 
point: 

In this case the inherent power to punish contempts and enforce orders of court by 
summary proceedings is fully sustained, and it is said of sections 6906 and 6907 of the 
Revised Statutes, which make certain acts formerly punishable as contempts now 
punishable by indictment as offenses against public justice, that if it is to be inter¬ 
preted to take away from a constitutional court its inherent right to punish offenses 
of this character when they are contempts of court, the statute will be invalidated. 

In Ex parte McCown (139 N. C.), decided in 1905,sections 648 to 657 
of legislative act of 1871 were pleaded to prevent punishment for 
contempt. The court said: 

We are satisfied that at common law the acts and conduct of the petitioner, as set out 
in the case, constitute a contempt of court, and if the statute does not embrace this 
case and in terms repeals the common law applicable to it, we would not hesitate to 
declare the statute in that respect unconstitutional and void for reasons which we will 
now state. 

The case of Callahan v. Judd (23 Wis., 343), has been cited often on 
the question as to whether‘the legislature has the power under the 
constitution to require courts of equity to employ a jury in their ad¬ 
ministration of the law. It is a well-considered case, and we quote 
from the opinion: 

I think the act invalid, and my reasons are, briefly, as follows: The power to decide 
questions of fact in equity cases belonged to the chancellor just as much as the power 
to decide questions of law. It was an inherent part and one of the constituent elements 
of equitable jurisdiction. If, therefore, it shall appear that by the constitution the 
equitable jurisdiction existing in this State is vested in the courts, I think it will 
necessarily follow that it would not be competent for the legislature to divest him of 
any part of it and confer it upon juries. If they can do so as to a part, I do not see 
why they may not as to the whole. If they can say that in an equity case no court 
shall render any judgment except upon the verdict of a jury upon questions of fact, 
I can see no reason why they may not say that a jury shall also be allowed to decide 
questions of law. 

But the constitution (sec. 2, art. 7) provides that “the judicial power of this State, 
both as to matters of law and equity, shall be vested in a supreme court, circuit courts, 
courts of probate, and justices of the peace. The legislature may also vest such 
jurisdiction as shall be deemed necessary in municipal courts. * * 

In order to determine the meaning of the phrase “judicial power as to matters of 
law and equity,” it is only necessary to refer to the system of jurisprudence estab¬ 
lished in this country and derived from England, in which the court had certain well- 


PKOCEDURE IN CONTEMPT CASES. 


7 


defined powers in those two classes of cases. In actions of law tliey liad the power of 
determining questions of law, and were required to submit (juestions of fact to a jury. 

hen the constitution, therefore, vested in certain courts judicial power in matters at 
law, this would be construed as vesting such power as the court, under the English and 
American systems of jurisprudence, had always exercised in that class of actions. It 
would not import that they were to decide (juestions of fact, because such was not the 
judicial power in such actions. And the constitution does not attem])t to define 
judicial power in these matters, but speaks of it as a thing existing and understood. 
But, to remove all doubt in actions at law, the right of a trial by jury is expressly pre¬ 
served by another provision. 

But, as already stated, the power of a court of chancery to determine questions of 
fact as well as of law was equally well established and understood. And when the 
constitution vested in certain courts judicial power as to matters in e(}uity, it clothed 
them with this power as one of the established elements of judicial power in equity, 
so that the legislature can not withdraw it and confer it upon juries. * * * 

The plain object of this provision was to enable the legislature to distribute the 
jurisdiction in both matters at law and in equity as between the circuit courts and the 
other courts in the State, giving the circuit courts such original jurisdiction and such 
appellate jurisdiction as it might see fit. But the jurisdiction there intended was 
jurisdiction of the suit. 

It may well be that the legislature may deprive the circuit courts of original juris¬ 
diction in actions for the foreclosure of mortgages. It is unnecessary to determine 
whether it could or not. But it is quite certain that this clause contains no authority 
for it, while leaving those courts jurisdiction of this class of action, to attempt to 
withdraw from them an acknowledged part of fhe judicial power an (I vest it in the 
jury. 

The Supreme Court of Oklahoma held an act of the legislature 
unconstitutional which required the courts to submit indirect con¬ 
tempts to a trial by jury. The following is the opinion of that court 
in the case of Smith v. Speed (11 Okla., 95): 

If it now should be found that the judge had no power to enforce his order at all 
or to punish for contempt, and that the court had no power to punish beyond a fine of 
$50 and imprisonment not exceeding a longer period than 10 days in the county jail, 
and that a change of judge may be had and a change of venue from the county, and 
that a trial by jury may be had to determine whether the recalcitrant party is in 
contempt at all or not, it will be admitted by the bar, acquainted with the law’s 
delays, that the power to punish for contempt, either direct or indirect, being destroyed 
in the judge, will be to a great extent destroyed also in the court ami rendered 
valueless. 

If the contention now sought for by the plaintiff in error should be sustained, it 
would go to the extent that the court, in equitable proceedings, after a full hearing 
and a final determination and judgment upon the merits, is without the power to 
enforce its judgments by the imposition of a pecuniary penalty or imprisonment, and 
that in the endeavor to enforce its judgment by proceedings in contempt it would be 
subject to have its final judgment brought into review in the contempt proceedings 
upon a change of judge, or of venue, to a completely new jurisdiction and to a trial by 
jury, in which the merits of the final order, which has been made by the court, in the 
proceeding, should again be reviewed, including the question whether there was any 
merit, right, or authority of the court in the equitable proceedings in which the judg¬ 
ment had been rendered or the order made, and the equitable jurisdiction of the dis¬ 
trict court upon matters finally determined would thus be subject to be again brought 
in question by another judge in another venture and by a jury, a thing unheard of in 
the chancery jurisdiction. If such a state of things could be, it could but result in 
the degradation of courts and to make them truly the subjects of contempt. 

If the power to punish for contempt is inherent in the courts it 
can not be taken away or impaired by Congress or the State legisla¬ 
tures. If it is inherent then the courts can not exist without it. As 
to whether such power is inherent is well stated by the Supreme Court 
of Mississippi in the case of Watson v. Williams (36 Miss., 331), as 
follows: 

The power to fine and imprison for contempt, from the earliest history of juris¬ 
prudence, has been regarded as a necessary incident and a1 tribute of a court, without 
which it could no more exist than without a judge. It is a power inherent in all courts 


8 


PKOCEDURE IN CONTEMPT CASES. 


of record and coexisting with them by the wise provisions of the common law. A 
court without the power effectually to protect itself against the assaults of the lawless, 
or to enfore its orders, judgments, or decrees against the recusant parties before it, 
would be a disgrace to the legislation and a stigma upon the age which invented it. 

In Kalamazoo v. Superior Court Judge, in 75 Michigan, 274, the 
court argues the question in this way: 

It is within the power of a legislature to change the formalities of legal procedure, 
but it is not competent to make such changes as to impair the enforcement of rights. 

* * * functions of judges in equity cases in dealing with them is as well 

settled a part of the judicial power and as necessary to its administration as the func¬ 
tions of juries in common-law cases. Our constitutions are framed to protect all 
rights. When they vest judicial power they do so in accordance with all of its essen¬ 
tials, and when they vest it in any court they vest it as efficient for the protection of 
rights, and not subject to be distorted or made inadequate. The right to have equity 
controversies dealt with by equitable methods is as sacred as the right of trial by jury. 
Whatever may be the machinery for gathering testimony or enforcing decrees, the 
facts and the law must be decided together; and when a chancellor desires to have the 
aid of a jury to find out how the facts appear to such unprofessional men, it can only be 
done by submitting single issues of pure fact, and they can not foreclose him in his 
conclusions unless they convince his judgment. 

In all ages and in all countries this distinction by nature, which was never called 
“equitable” except in English jurisprudence, where it was first so called from an idea 
that the rights were imperfect because unknown in the rude ages, when property was 
scanty and business almost unheard of in the regions outside of great cities, has been 
recognized and provided for by suitable methods substantially similar in character. 

* * * 'phg system of chancery jurisprudence has been developed as carefully and 
as judiciously as any part of the legal system, and the judicial power includes it, and 
always must include it. Any change which transfers the power that belongs to a 
judge to a jury, or to any other person or body, is as plain a violation of the Con¬ 
stitution as one which should give the courts executive or legislative power vested 
elsewhere. The cognizance of equitable questions belongs to the judiciary as a part 
of the judicial power, and under our Constitution must remain vested where it always 
has been vested heretofore. 

The following cases and many others lay down the same doctrine: 
Ex parte Terry (128 U. S.); Eilenbecker i;. Plymouth Court (134U. S.); 
Ex parte Debs (158 U. S.). 

In conclusion, we call attention to the most recent utterance of the 
United States Supreme Court on this point in the case of Gompers v. 
Bucks Stove & Range Co. (221 U. S., 492) and the cases therein cited. 
Judge Lamar says: 

For while it is sparingly to be used, yet the power of courts to punish for contempts 
is a necessary and integral part of the independence of the judiciary, and is absolutely 
essential to the performance of the duties imposed on them by law. Without it they 
are mere boards of arbitration, whose judgments and decrees would be only advisory. 

If a party can make himself a judge of the validity of orders which have been 
issued, and by his own act of disobedience set them aside, then are the courts impo¬ 
tent, and what the Constitution now fittingly calls “judicial power of the United 
States” would be a mere mockery. 

This power “has been uniformly held to be necessary to the protection of the court 
from insults and oppression while in the ordinary exercise of its duty, and to enable 
it to enforce its judgments and orders necessary to the due administration of law and 
the protection of the rights of citizens.” (Bessette v. W. B. Conkey Co., 194 U S , 
333,48 L. ed., 1004; 24 Sup. Ct. Rep., 665.) 

There has been general recognition of the fact that the courts are clothed with 
this power, and must be authorized to exercise it without referring the issues of fact 
or law to another tribunal or to a jury in the same tribunal. For, if there was no such 
authority in the first instance, there would be no power to enforce its orders if they 
were disregarded in such independent investigation. Without authority to act 
promptly and independently the courts could not administer public justice or enforce 
the rights of private litigants. (Bessettei;. W. B. Conkey Co., 194 U. S., 337, 48 L. ed., 
1005; 24 Sup. Ct. Rep., 665.) 


PKOCEDURE IN CONTEMPT CASES. 


9 


What good can come from this legislation? What evils will be 
remedied and what rights will be more secure ? If you can point to 
nothing it will accomplish in the way of enlightened progress then this 
bill should be defeated. If our present system of punishing contempts 
has worked well is it the part of wisdom for Congress, even if it has 
the power, to change it ? Is it wise public policy to do so ? 

In this day of carping critics we hear much of criticism of our 
American institutions and especially of our courts. Criticism of some 
of the courts may be just, but that does not justify a radical change 
in the method of procedure that will hinder and embarrass our whole 
judiciary in the administration of justice. If in some instances, yet 
none have been cited, the judges have abused the power to punish 
for contempt, is it a wise policy to take from or seriously impair the 
power of all the judges to administer justice and maintain the dignity 
and authority of the courts of the land ? 

It has been urged that this legislation is needed to relieve the courts 
of the criticism that the judges are biased in their decisions as to 
whether their own orders have been violated and their authority 
defied. 

They say that whether this criticism be just or not, they should be 
removed from the possibility of this charge. Even if this amounts 
to an argument it is not necessary to impair the power of the courts 
in the performance of their judicial functions to reach that end. If 
one accused of contempt feels that he can not have a fair trial before 
the judge ^Svhose authority he has defied,” it is not necessary to 
resort to the slow, uncertain, and cumbersome plan provided by 
this bill to remedy that evil, if it were possible under the Constitution 
to do so. The possibility of prejudice on the part of the judge may 
be eliminated by another plan much surer and more expeditious 
than this, and a plan that does no violence to the Constitution. Let 
the accused have the right to have another judge designated to try 
and determine whether he is guilty of the charge. A judge is quali¬ 
fied to know and understand the force and purpose of a decree and 
the importance to the litigants and to the people, of having it duly- 
observed. This would avoid all the uncertainties and delays inci¬ 
dent to the jury system. It would wholly remove the possibility of 
the accused being the victim of bias or prejudice and fully answers 
the charge that judges should be protected from the criticism that 
prejudice influences their decisions in such cases. 

President Taft very ably discusses these two plans in his letter of 
acceptance: 

DANGEROUS ATTACK ON POWER OP COURTS. 

This provision in the [Democratic] platform of 1896 was regarded then as a most 
dangerous attack upon the power of the courts to enforce their orders and decrees, 
and it was one of the chief reasons for the defeat of the Democratic Party in that contest, 
as it ought to have been. The extended operation of such a provision to weaken 
the power of the courts in the enforcement of their lawful orders can hardly be over¬ 
stated. 

EFFECT OF JURY TRIAL. 

Under such a provision a recalcitrant witness who refuses to obey a subpoena may 
insist on a jury trial before the court can determine that he received the subpoena. A 
citizen summoned as a juror and refusing to obey the writ when brought into court 
must be tried by another jury to determine whether he got the summons. Such a 
provision applies not alone to injunctions, but to every order which the court issues 

H. Kept. 613, 62-2, pt. 2-2 


10 


PEOCEDUEE IN CONTEMPT CASES. 


against persons. A suit may be tried in the court of first instance and carried to the 
court of appeals and thence to the Supreme Court, and a judgment and decree entered 
and an order issued, and then if the decree involves the defendants’ doing anything 
or not doing anything, and he disobeys it, the plaintiff, who has pursued his remedies 
in lawful course for years, must, to secure his rights, undergo the uncertainties and 
delays of a jury trial before he can enjoy that which is his right by the decision of the 
highest court of the land. I say without hesitation that such a change would greatly 
impair the indispensable power and authority of the courts. In securing to the public 
the benefits of the new statutes enacted in the present administration the ultimate 
instrumentality to be resorted to is the courts of the United States. If now their 
authority is to be weakened in a manner never known in the history of the jurispru¬ 
dence of England or America, except in the constitution of Oklahoma, how can we 
expect that such statutes will have efficient enforcement Those who advocate this 
intervention of a jury in such cases seem to suppose that this change in some way will 
inure only to the benefit of the poor working man. As a matter of fact, the person 
who will secure chief advantage from it is the wealthy and unscrupulous defendant, 
able to employ astute and cunning counsel and anxious to avoid justice. 

I have been willing, in order to avoid a popular but unfounded impression that a 
judge, in punishing for contempt of his own order, may be affected by personal feeling, 
to approve a law which should enable the contemnor upon his application to have 
another judge sit to hear the charge of contempt, but this, with so many judges as there 
are available in the Federal courts would not constitute a delay in the enforcement 
of the process. The character and efficiency of the trial would be the same. It is 
the nature and the delay of a jury trial in such cases that those who would wish to 
defy the order of the court would rely upon as a reason for doing so. 

MAINTENANCE OF FULL POWER OF COURTS NECESSARY TO AVOID ANARCHY. 

The administration of justice lies at the foundation of government. The mainte¬ 
nance of the authority of the courts is essential unless we are prepared to embrace 
anarchy. Never in the history of the country has there been such an insidious attack 
upon the judicial system as the proposal to interject a jury trial between all orders of 
the court made after full hearing and the enforcement of such orders. 

We present a bill (H. R. 21722), introduced by Mr. Sterling, which 
provides a plan of procedure in contempt cases, and which gives to 
one accused of indirect contempt the right to have another judge 
designated to try and determine the charge of contempt against him, 
and recommend that it do pass. 

It is as follows: 


[H. R. 21722, Sixty-second Congress, second session.] 

A BILL To amend an act entitled '‘An Act to codify, revise, and amend the laws relating to the judiciary.’ ’ 
approved March third, nineteen hundred and eleven. 

Be it enacted by the Senate and House of Representatives of the United States of America in 
Congress assembled, That the act entitled “An act to codify, revise, and amend the 
laws relating to the judiciary, ’ ’ approved March third, nineteen hundred and eleven, be, 
and the same is hereby, amended by inserting after section two hundred and sixty- 
eight thereof seven new sections, to‘be numbered, respectively, 268 a, 268 b, 268 c, 
268 d, 268 e, 268 f, and 268 g, reading as follows: 

“Sec. 268 a. That contempts of court are divided into two classes, direct contempts 
and indirect contempts, as hereinafter defined. 

“Sec. 268 b. That contempts committed in the presence of the court or of a judge 
at chambers are direct contempts. All other contempts are indirect contempts. 

“Sec. 268 c. A person charged with direct contempt of court, if found guilty, shall 
be punished summarily and judgment thereon shall be entered of record accordingly, 
which judgment shall contain a statement of the acts constituting the contempt and a 
statement, if any, of the accused relied on as a defense or made in extenuation of the 
offense and the sentence of the court in the case. 

“Sec. 268 d. Any person charged with indirect contempt of court shall be given a 
written statement of the charge or charges against him specifically setting forth the 
acts on which the charge of contempt is predicated. Thereupon the accused shall be 
arraigned and his plea entered of record. If the accused should plead guilty to the 
charge the court shall enter judgment thereon and impose sentence in the case. If 
he pleads not guilty the court shall set the case for trial and admit the accused to bail 
until final determination of the case. The trial shall be by the court, and witnesses 


PKOCEDUEE IN CONTEMPT CASES j 


11 


called and examined for and against the accused as in criminal cases. If the accused 
shall be found guilty, judgment shall be entered accordingly and the punishment pre¬ 
scribed, Said punishment may be by fine or imprisonment, or both, in the discre¬ 
tion of the court: Provided, That in cases where the fine is par/able to the United States 
the same shall not exceed the sum of one thousand dollars in any case; and in no case 
shall the term of imprisonment exceed six months. 

“Sec. 268 e. If any person who has entered a plea of hot guilty to a charge of indi¬ 
rect contempt shall make affidavit that the judge before whom the case is set for trial 
in the first instance is prejudiced against him and that on account of such prejudice 
he believes he can not have a fair and impartial trial such judge shall designate forth¬ 
with some other judge to hear and determine the case. 

“Sec, 268 f. That the evidence taken on the trial of any person accused of indirect 
contempt shall be preserved by bill of exceptions and any judgment entered in such 
case may be reviewed on appeal or by writ of error as now provided by law in criminal 
cases and such judgment may be reversed or modified as justice may require. When 
an appeal is taken or a writ of error granted, execution of the judgment shall be stayed 
and the accused shall be admitted to bail in such sum as is fixed by the court. 

“Sec. 268 g. That the provisions of this act shall apply to all proceedings for con¬ 
tempt in all courts of the United States except the Supreme Court: Provided, That 
this act shall not affect any contempt proceedings pending at the time of the passage 
of this act.” 

The fundamental distinction between this bill and H. R. 21100 is 
that the latter provides a trial by jury in cases where the acts con¬ 
stituting the contempt also constitute a criminal offense, while this 
bill provides that in indirect contempts the accused may have another 
judge to try the contempt. 

We believe that it meets every ciiticism, just or unjust, and avoids 
every evil that may be charged against the present practice. 

It divides contempts into two dasses, direct and indirect, and gives 
to each class the usual and natural definition. 

It defines direct comtempts as those committed in the presence of 
the court or of a judge at chambers. Under it these contempts shall 
be punished summarily by the court. No one would change the 
practice in that regard, and neither of the biUs would deprive the court 
of the power to deal with such contempts in that way. It further 
provides that the judgment in such case shall be entered of record and 
that the judgment shall contain a statement of the acts and a state¬ 
ment, if any, of the accused, relied on as a defense or as an extenuation 
of the offense. 

It provides a specific plan of proceedure in aU cases which charge an 
indirect contempt of court. The accused may in such case, upon his 
own affidavit that the judge is prejudiced against him and that on 
account thereof he believes that he can not have a fair trial, have 
another judge designated to hear and determine his case. 

The bill also provides for a review by the higher courts on appeal or 
by writ of error. 

We repeat that the only charge made against the present practice 
is that judges who have issued orders or rendered judgments and 
decrees should not be permitted to pass upon the question as to 
whether a person has violated such order or decree or has defied or 
assailed the authority of the court oyer which that judge presides. 
It is said that a judge under such circumstances is prone to bias 
and that his decision might be tainted with prejudice against the 
accused. This bill eliminates such a possibility and it does it more 
effectually than does the bill reported by the majority. Under that 
bill the judge conducts the trial of the case before the jury, he passes 
upon the admissibility of the evidence, and delivers the charge to the 


12 


library of congres 


PEOCEDUKE IN CONTEMPT CASE 



jury, so that undqr the system provided by that um ® 

possibility of the same criticism against him as in the present practice. 
The accused might ^till feel that he was the victim of judicial bias. 

Such is not the ckse in the bill offered by the minority. Under 
its provisions the jimge whose decree has been violated or whose 
authority has been (lefied is eliminated fron the case and it is sub¬ 
mitted to another ji]dge who could have no possible prejudice against 
the accused, becaus<3 he has no connection with the case. This bill 
meets all objection \to the present practice without doing violence 
to the long-establish^ principles of equity which forbids the inter¬ 
vention of a jury in eqiwty proceedings. It accomplishes the desired 
end without taking away or impairing the judicial power of the 
court conferred upon it byNthe Constitution. 

Respectfully submitted. 

") John A. Sterling. 

R. O. Moon. 

Edwin W. Higgins. 

Paul Howland. 

Frank M. Nye. 

Francis H. Dodds. 




